Scholey v. Steele

DOOLING-, J. pro tem.

Defendant Marshall Steele, Jr., appeals from a judgment for $500 rendered against him for personal injuries suffered by the plaintiff. The plaintiff’s injuries were caused by a fall from the front steps of a dwelling house of which appellant is the owner and Mrs. Mary Enos the tenant under a month to month tenancy. The fall was caused by the giving way of a decayed step and railing. The trial court found that as one of the terms of the tenancy appellant had covenanted through his agent E. E. Webster, Inc., to assume the ordinary upkeep, maintenance and repair of the premises and that he knowingly, negligently and carelessly failed and neglected to make ordinary and necessary repairs to the steps.

This finding is attacked as being without support in the evidence. The tenant testified that when she first rented the premises through E. E. Webster, Inc., she was told “that they would repair it whenever it should need anything”; that

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subsequently at her request the roof, drain board, wash trays, pipes, lavatories, sink, garage and windows had been repaired from time to time; and that she had requested B. E. Webster, Ine., to repair the steps and railing on several occasions and they had promised to do so. The house at the beginning of the tenancy was not owned by appellant but when he acquired it in 1936 the month to month tenancy was not interrupted and E. E. Webster, Inc., as real estate agent, continued to look after the premises and collect the rents as before. Appellant gave the following testimony:

“Q. Mr. Webster (of E. E. Webster, Inc.) was authorized to make whatever repairs were necessary, isn’t that correct?

“A.

I have to qualify my answer on him to this extent, any minor repairs, yes; involving a substantial outlay of capital, no, not without my' consultation. . . .

“Q. He services that for you and acts as your agent, isn’t that correct?

“A. Yes.”

Respondent attempted to prove that these were minor repairs, costing when afterwards made only about $13. Appellant objected to this proof on the ground that it was incompetent, irrelevant and immaterial, and his objection was sustained.